Joshua and Kagan

Linda Greenhouse has a column on the Times’s Web site on a small but, to her mind, telling memo from the Kagan files, on the case of DeShaney v. Winnebago County Social Services Department, from 1989. The issue was whether there was redress, on due-process grounds, for a four-year-old boy, Joshua DeShaney, who had been beaten within an inch of his life by his father and left brain damaged. His mother thought that social workers had opportunities to see what the situation was beforehand, and failed to save the boy. More broadly, the question was whether people can complain when the government doesn’t do things, or just when it does.

Kagan, as Thurgood Marshall’s clerk, sympathized with DeShaney, but, thinking strategically, worried that, given how the votes on the Court were lined up, taking the case would mean not only that he didn’t get help but that a poor precedent would be put in place. And that’s what happened, with Justice Marshall, Brennan, and Blackmun dissenting. So part of the lesson here is that she knew how to count votes.

But what was at stake in the case? Greenhouse mentions that

Justice Blackmun’s lament of “Poor Joshua!” became a well-known epitaph for the case.

The passages the phrase “Poor Joshua!” is taken from are worth reading at length:

Like the antebellum judges who denied relief to fugitive slaves, see id. at 119-121, the Court today claims that its decision, however harsh, is compelled by existing legal doctrine. On the contrary, the question presented by this case [p213] is an open one, and our Fourteenth Amendment precedents may be read more broadly or narrowly depending upon how one chooses to read them. Faced with the choice, I would adopt a “sympathetic” reading, one which comports with dictates of fundamental justice and recognizes that compassion need not be exiled from the province of judging. Cf. A. Stone, Law, Psychiatry, and Morality 262 (1984) (“We will make mistakes if we go forward, but doing nothing can be the worst mistake. What is required of us is moral ambition. Until our composite sketch becomes a true portrait of humanity, we must live with our uncertainty; we will grope, we will struggle, and our compassion may be our only guide and comfort”).

Poor Joshua! Victim of repeated attacks by an irresponsible, bullying, cowardly, and intemperate father, and abandoned by respondents, who placed him in a dangerous predicament and who knew or learned what was going on, and yet did essentially nothing except, as the Court revealingly observes, ante at 193, “dutifully recorded these incidents in [their] files.” It is a sad commentary upon American life, and constitutional principles—so full of late of patriotic fervor and proud proclamations about “liberty and justice for all,” that this child, Joshua DeShaney, now is assigned to live out the remainder of his life profoundly retarded. Joshua and his mother, as petitioners here, deserve—but now are denied by this Court—the opportunity to have the facts of their case considered in the light of the constitutional protection that 42 U.S.C. § 1983 is meant to provide.

Well, that about says it. We read, we choose, we act. (Or degrade ourselves by failing to act.) That doesn’t mean that judges can just make things up—and they probably shouldn’t, as Blackmun once did, spend too much time in opinions going on about their favorite baseball players, although a little of that is fine. But if the glass we saw things through was never smudged, we wouldn’t need all those panels of judges; the only dissents would be the result of corruption and poor reading-comprehension skills, and one hopes that there isn’t too much of that in our highest courts. (Perhaps one would be surprised; you also wouldn’t think that World Cup referees would stand around disqualifying goals for no discernible reason.)

Kagan’s confirmation hearings begin a week from Monday. We’ve been spared a certain amount of the ranting about the supposed evils of empathy we heard when Sonya Sotomayor was up—perhaps because it wasn’t really about empathy but about less respectable anxieties. But empathy is also a word for what you get when the moral ambition Blackmun mentions is joined with humility—ingredients in true justice, and in the making of a good Justice for the Court.

Amy Davidson Sorkin, a staff writer at The New Yorker, is a regular contributor to Comment for the magazine and writes a Web column in which she covers war, sports, and everything in between.